COURT FILE NO.: 847/18
DATE: 2019/04/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Arcon Property Holdings Ltd.
Applicant
– and –
Rachael Anne Steeper and Ronald Wayne Steeper and Donna Lynn Nelson
Respondents
COUNSEL:
Analee Ferreira, for the Applicant
Paula Downs, for the Respondents Rachael Anne and Ronald Wayne Steeper
Michael Robertson, for the Respondent Donna Lynn Nelson
HEARD: February 25, 2019
REASONS FOR DECISION
George J.
[1] The Applicant seeks an order prohibiting the Respondents, Rachael Anne Steeper and Ronald Wayne Steeper (“Steepers”), from parking on or otherwise obstructing its easement rights. It also seeks an order prohibiting the Steepers from parking on its vacant lot, legally described as Pt Lt 3 Pl 36 Bosanquet (L927569, Lambton Shores).
[2] The Steepers have ceased parking on the vacant lot and have agreed to not do so in the future. No order is necessary.
[3] The Steepers and Respondent Donna Nelson (“Nelson”) all argue that the scope of the Applicant’s easement rights are not as broad as it suggests.
[4] By way of background, the Applicant owns land municipally known as 7426 Bond Rd., with an easement registered as L549519. This easement creates a 15-foot wide right of way (“ROW”) over Nelson’s property at 7422 Bond Rd. The Steepers, who reside at 7430 Bond Rd., also have an easement over Nelson’s property.
[5] The Applicant’s primary complaint is that when the Steepers park their vehicles on the ROW it prevents access to the beach, the launching of marine vehicles, and from parking a trailer in its driveway.
[6] The Steepers have detailed their family’s connection with 7430 bond Rd. In 1955 Ms. Steepers grandparents received and registered the deed which contains the ROW, described as:
…a right-of-way for all purposes in common with the owners from time to time of the remaining portions of said Lot Number 3 and Lot Number 2 according to the said Registered Plan over, along and upon the Easterly 15 feet of the Lot Number 2 according to Registered Plan Number 36.
[7] The Applicant’s ROW allows for this:
…the right to use for ingress and egress, in, over and upon the following described land being part of Lot 2, Register Plan Number 36.
[8] The ROW is a strip of land that runs from Bond Rd. towards Lake Huron between Nelson’s property, the Applicant’s vacant lot, 7426 Bond Rd, and 7430 Bond Rd. While the ROW extends beyond the cottage homes to the lake, it is primarily a paved access to these homes from Bond Rd. Without the ROW neither the Applicant nor Steepers could access their respective properties by vehicle.
[9] Ms. Steeper deposes that her family has parked vehicles by their cottage, on the ROW, since 1955, and argues that she has the legal right to park there.
[10] While Nelson takes no position on whether the Steepers should be permitted to park on the ROW, she argues that the Applicant’s interpretation of the ROW is far too broad. With respect to the northern portion of the ROW – which is beyond the pavement and cottage homes, and closer to the lakefront – she deposes that its intended and actual use has always been to provide access to the water by foot. She does not agree that the Applicant’s ROW permits him to drive motor vehicles, trailers or other motorized equipment over the ROW to launch marine craft.
[11] Two issues arise. First, is the Applicant’s interpretation of its ROW correct and does it have the right to launch marine craft and operate motorized vehicles on the northern portion of the ROW past the paved asphalt? Second, do the Steeper’s have a legal right to park on the ROW?
[12] It is important to understand the difference between the ROW’s in question, and the terrain from the homes to the shoreline. I will then address the Steeper claims that they have an acquired right to park on the ROW, given their family has done so without complaint since 1955.
[13] First, the ROW. There can be no doubt that the Steeper ROW is broader than the Applicant’s. The Steepers right to use is “for all purposes in common with the owners [Nelson]”.
[14] The Applicant’s ROW is for “ingress and egress, in, over and upon” its property. Ingress means the capacity to enter into or onto something. Synonyms include entry, access, and admittance. Egress means to have a way out. Synonyms include departure, exit and withdrawal. According to this ROW, the right to enter and exit is in relation specifically to the Applicant’s property (part of Lot 2, Register Plan Number 36). That is the ROW’s purpose, which is entirely consistent with Nelson’s position and her evidence about the historical and factual circumstances surrounding these properties, use of the ROW, and beach access.
[15] Nelson’s evidence, which I accept – that the purpose of the easement is to allow vehicle access to the homes from Bond Rd, and the water by foot – is fatal to the Applicant’s position that it has the right, by virtue of the ROW, to transport marine vehicles past the cottages to the lake. The terrain northward from beyond the cottage driveways to the lakefront, confirms this.
[16] To understand the beach area better, several photographs of the area have been filed. This is a craggy coastline. It is rough, uneven, rock filled, and in some places overgrown. It is abundantly clear that it is not now, nor has it ever been used, or intended to be used, as a launch site for marine vehicles.
[17] For these reasons the Applicant’s position is unsustainable. I find that vehicular traffic ends, and has always ended, at the point the asphalt drive ends. This can only mean that the Applicant plans on erecting ramps and structures in and on the unkempt coastline to assist with launching. In fact at his examination for discovery Mark Przeweida, the Applicant’s principal, confirms, first, his hope that the water levels will change making it easier to launch, and second, if it does not, that he will indeed use ramps.
[18] In my view the right to ingress and egress onto, over and out of its property does not give the Applicant the right to erect ramps or other structures – either temporary or permanent - to facilitate the launching of marine craft. Not only has the ROW never been used in that way, it could not have been an intended or contemplated use when the ROW was created.
[19] I agree that the Applicant has the right to access the beach using the ROW. However, having regard to the language of the ROW, its historical and customary use, what its contemplated use must have been when the easement was created, and given Nelson’s evidence, such access is only permitted by foot. Therefore, as the Applicant has no right to access the beach with motorized vehicles, no one is interfering with its right to do so.
[20] I turn now to whether the Steepers should be permitted to park their vehicles on the ROW.
[21] The Applicant argues that when the Steepers and or their guests park on the ROW they are substantially interfering with its ability to back a trailer into the driveway when accessing the property from Bond Rd., and to back out of the driveway with a trailer in order to access Bond Rd. The Steepers argue that they have an acquired right to park there. Nelson takes no position on this aspect of the application.
[22] The Steepers assert that there has been acquiescence to their practice of parking on the ROW. They rely upon Tasker v. Badgerow (2007), 60 R.P.R. (4th) 79 where the court addressed whether the respondents had acquired the right to maintain a well, and a shed over that well, on property owned by their neighbour but which was subject to a ROW in their favour. This well was built on that ROW in 1946 and had always been sheltered by a shed or cover.
[23] Murray J. made two important findings. First, that the original grant did not permit the construction and maintenance of a well on the ROW. And second, notwithstanding the fact this was not an intended or contemplated use, the Respondents were entitled to use the well and retain a cover on the ROW. By acquiescing to this encroachment, the Applicants had abandoned their right to object.
[24] In this case, the Steepers depose that from as far back as 1955, and continuously since, their family has parked cars on the ROW without objection from Nelson, any of her predecessors, or from any prior owner of the Applicant’s property.
[25] Returning to Tasker, beginning at para. 52 Murray J. writes:
Pursuant to the provisions of ss. 4, 5(1) and 15 of the Real Property Limitations Act, R.S.O. 1990 c. L15, a person can acquire adverse title to a property and extinguish the registered owners title to the property after exercising control or dominion over the property for a period of 10 years.
The Real Property Limitations Act has been described as one of extinctive, not acquisitive prescription. The Act imposes an obligation on the holders of legal title to enforce their rights within 10 years after the possession of their property begins, or, in the alternative, prevents the title holders from asserting such claim, or defending against an adverse possessor, after that 10 years have elapsed. See Carrozzi v. Guo [2002] O.J. No. 3629.
As was said by Blair J.A. in Masdon Investments Ltd. V. Ham, 1984 CanLII 1877 (ON CA), 45 O.R. (2nd) 563 at 567 “whether a prescriptive title has been acquired is a question of fact to be determined in the light of the circumstances of each case”. Justice Blair relying on the earlier decisions of the Court of Appeal in Keefer v. Arillota (1967), 1976 CanLII 571 (ON CA), 13 O.R. (2nd) 680 and in Fletcher v. Storoschuk et al. (1981), 13 O.R. (2nd) 722 articulated the test which must be met by a claimant to a possessory title throughout the statutory period. Such a claimant must show:
that he had actual possession,
that he has the intention of excluding the true owner from possession, and
that he effectively excluded the true owner of possession.
The claimant will fail unless he meets each of these three tests and time will begin to run against the owner only from the last date when all of them are satisfied. In addition, Justice Blair confirmed the often-stated proposition that possession must be “open, notorious, constant, continuous, peaceful, and exclusive to the right of the true owner”.
[26] In the result I accept the Steeper evidence that they, and their family, have used this ROW to park vehicles since 1955, and that this use has been open, notorious, and continuous. While adducing no evidence to the contrary, the Applicant suggests the Steeper position is unreliable, self-serving and uncorroborated.
[27] On the issue of corroboration, the following exchange between counsel and Ms. Steeper at her cross-examination was brought to my attention:
Q (Ms. Baroudi): So have you gone through any of your old photographs and seen if any of them show a vehicle parked in the right of way?
A (Ms. Steeper): Tracks.
Q: Trucks?
A: Tracks. There was tracks.
Q: Tracks?
A: Tracks.
Q: So in…
A: The picture that was taken by my parents took it does just, and my grandparents ‘cause it’s a black and white, does show the cottage but the tracks to where the vehicles would’ve been parked.
Q: Okay. So…
A: In the sand.
Q: In all of those years that you were at the cottage on all of those occasions…
A: Yes.
Q: …you don’t have one photograph of a vehicle parked in the right of way?
A: I would have to look back, but I would assume yes. Because we have enough photographs of that, of that home.
Q: Okay.
Q Counsel for Ms. Steeper (Ms. Downs): Do you want us to undertake, counsel, to review our records and…
Ms. Baroudi: No, that’s okay.
Ms. Downs: Okay.
[28] In light of this it is difficult to see how the Steepers can be criticized for not producing more dated photographs. The bottom line is there is nothing in the record to contradict Ms. Steeper’s evidence, and I accept it.
[29] I find that the evidence overwhelmingly establishes at least a passive tolerance for the Steeper use of the ROW. There is some evidence that they were expressly granted permission to park in this manner, but this is disputed and the evidence on this point is neither clear nor convincing. In addition, while the tests for prescriptive easement and adverse possession are strikingly similar, I am not satisfied that the doctrine of adverse possession applies, which means I cannot declare that the Steepers have rights akin to an owner or that the servient owner has forever lost her fee simple title. Rather, the Steepers have a right to use the ROW in the way they and their family have traditionally done so - a period that now exceeds 60 years.
[30] Section 31 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 provides that:
No claim that may be made lawfully at the common law, by custom, prescription or grant, to any way or other easement, or to any water course, or the use of any water to be enjoyed, or derived upon, over or from any land or water of the Crown or being the property of any person, when the way or other matter as herein last before-mentioned has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years shall be defeated or destroyed by showing only that the way or other matter was first enjoyed at any time prior to the period of twenty years, but, nevertheless the claim may be defeated in any other way by which it is now liable to be defeated, and where the way or other matter as herein last before-mentioned has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.
[31] Given my finding that the Steepers and their family have used the ROW to park vehicles beside their home for more than forty years, their right to do so is absolute and indefeasible.
[32] I appreciate Nelson’s evidence that she consented to the Steeper request to park there, and that without her permission she believes they would not be able to do so – which is disputed by Ms. Steeper. However, given my finding that the Steeper’s have established a right to park on the ROW otherwise, I do not feel there is a need to resolve this contest.
[33] I find that the original grant does not permit the Steepers to park on the ROW. However, there has been acquiescence to the Steeper practice of parking vehicles in that location. The test for a prescriptive easement has been met. For clarity, while the test for a prescriptive easement is similar to that for adverse possession, I am not prepared to conclude that the Steepers have acquired rights akin to ownership. Rather, they have acquired – with the servient owner maintaining fee simple title – the right to a specific use (e.g. park).
[34] To the extent the Steeper vehicles hamper the Applicant from backing a trailer into or out of its driveway, I take the Steepers at their word that they will move their vehicles when requested. I have no reason to believe they won’t honour that commitment, nor is there any evidence the Steepers have refused or ignored such requests in the past. There is no need for me to weigh in and make an order on this point.
[35] The Application is dismissed. In doing so I have determined that the Steepers have acquired the right to park their vehicles on the ROW. I also make an order that enjoins the Applicant from launching motorized marine craft, operating vehicles on the ROW to the north of the paved asphalt, and from assembling ramps or other similar structures that would facilitate the launch of said craft on or from the ROW.
[36] Should the parties not agree on costs I invite brief written submissions. All respondents have 30 days from the date of this endorsement to file their argument. The Applicant has 15 days thereafter to file a response. There is no right of reply. If I have not received submissions on this time-line I will assume that either an agreement has been reached, or that no party is seeking costs.
“Justice J.C. George”
Justice Jonathon C. George
Released: April 10, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Arcon Property Holdings Ltd.
Applicant
– and –
Rachael Anne Steeper and Ronald Wayne Steeper and Donna Lynn Nelson
Respondents
REASONS FOR Decision
George J.
Released: April 10, 2019